KEDAR NATH Vs. MOHANI DEVI

JUDGEMENT

(1.) These two second appeals from orders were referred to a larger Bench by Mr. Justice S.N. Shankar because he found that there was divergence in the decisions of this court on the questions whether the Code of Civil Procedure, 1908 and the Limitation Act, 1963 were applicable to an appeal under section 39 of the Delhi Rent Control Act, 1958.

(2.) The litigations out of which these appeals have arisen have followed more or less an identical course. We will refer to it briefly in order to show the questions we are called upon to decide have arisen. Mr. Kedar Nath, an advocate, instituted two separate proceedings for eviction against his tenants who held different premises on lease from him. In one proceeding which has given rise to S.A.O. No. 6 of 1968) the tenant was Naubat Ram. In the other (which has given rise to S.A.O. No. 54 of 1968) the tenants were Prabhu Dayal and Mamman Lal. The tenants in both the premises died while proceedings were pending before the Additional Rent Controller. Their legal representatives were brought on record and amended petitions were filed, in the amended petitions it was contended. that the heirs of the deceased tenants had not inherited the tenancy because it was a statutory tenancy, and consequently they had enancy no right to remain in possession of the premises. The additional Rent Controller formed the opinion that as the relationship of landlord and tenant was no longer alleged to subsist between the parties, the petitions for eviction were not maintainable. Consequently, he dismissed both the petitions on this ground. Appeals taken against these orders to the Rent Control Tribunal failed because the Tribunal concurred with the Controller.

(3.) Then, in 1968, the two second appeals now before us were brought against the orders of the Tribunal. While these appeals were pending Mr. Kedar Nath died. He died on the 10th of April, 1971. On the 20th of August, 1971, two sets of applications were moved. By one set the legal representatives of Mr. Kedar Nath applied to have the abatement of the appeals set aside and also to be impleaded in place of the deceased appellant. These are C. Ms. Nos. 969 and 972 of 1971. In the other set (C. Ms. Nos. 970 and 973 of 1971) they prayed for condonation of the delay in filing the first set of applications. All these applications were opposed by the respondents in the appeal. When the applications came up for hearing before Mr. Justice S.N. Shankar one of the questions canvassed was whether Article 120 in the Schedule to the Lumitation Act was applicable. That article refers to applications "under the Code of Civil Procedure", and so the answer depends on whether the Code of Civil Procedure applies to an appeal under Section 39 of the Delhi Rent Control Act, 1958. As there were divergent views expressed in some judgments of this court on these questions, the referring order was made. These are the questions which we have now to decide. In the Delhi Rent Control Act, 1958 the section providing for appeals to the High Court is Section 39, which reads: